We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Combatting service animal fraud: those two questions you are allowed to ask do work!

From our experience, businesses often must deal with customers and guests who claim that their pets or comfort animals are “service animals” to avoid “no animal” rules or extra charges for pets. A recent decision from the United States District Court for the Eastern District of California serves as a reminder that businesses do have a mechanism for ferreting out service animal imposters.

Under the ADA Title III regulations issued by the Department of Justice (DOJ), there are two questions that a business or other public accommodation may ask to determine if an animal qualifies as a service animal:

Is the animal required because of a disability?; and

What work or task has the animal been trained to perform?

However, a business may not ask these two questions when it is readily apparent that the service animal is performing a task for a patron with a disability (for example, a dog that is observed guiding a person who is blind or has low vision). Also off limits are questions about the nature or extent of a patron’s disability and requests for proof of service animal training, licensing or certification.

The public accommodation in Lerma v. California Exposition and State Fair et al. was well-served by this protocol. The Plaintiff in Lerma tried to enter a fair in Sacramento, California with a cocker spaniel puppy. When a police officer employed by the venue approached her, Plaintiff claimed the puppy was a service animal and demanded to enter the park. The officer asked her what task the dog had been trained to perform. Plaintiff reportedly replied, “all I have to tell you is it’s a service dog and I’m going to sue you.” When the officer asked Plaintiff how she would handle the puppy’s need to relieve itself, or whether it was housebroken, Plaintiff again refused to answer the officer’s questions and threatened legal action. After this line of questioning, the officer told Plaintiff that because he could not determine whether the dog qualified as a service animal under the ADA, it should be removed from the premises. The Plaintiff subsequently filed a lawsuit alleging that this conduct violated the ADA.

At her deposition, Plaintiff admitted that the dog was not trained to assist her with a disability. In fact, the only training the dog received was housetraining and general obedience training. Plaintiff testified at deposition that she “needed the dog to be able to get through the day.”

Considering these facts, Magistrate Judge Gregory G. Hollows ruled that Plaintiff’s dog was not a service animal under the ADA and recommended the complete dismissal of this action. (Note that while the Court’s discussion was limited to the ADA, the definition of a service animal under other federal laws such as the Fair Housing Act and the Air Carrier Access Act, as well as some State and local laws, are broader than the ADA’s definition and should be always be consulted.)

The Court held that Plaintiff’s dog was not an ADA service animal because it was not trained to perform tasks that would benefit a person with a disability. Also, the Court observed that Plaintiff’s reasons for having the dog with her – - for emotional support and comfort – - were expressly excluded from the definition of a service animal under ADA regulations. (See our prior blog on service animals here, and note that while emotional support and comfort are not qualifying functions for an ADA service animal, a person with a psychological disability can have a service animal. Dogs trained to, for example, calm a person with Post Traumatic Stress Disorder during an anxiety attack, or remind a person with a mental illness to take prescribed medications, may qualify as service animals under the ADA.)

The Court also determined that the police officer acted properly in handling the interaction with Plaintiff. First, he asked one of the two permissible questions – - what task had the dog been trained to perform. Second, he asked whether the animal was housebroken. The ADA permits businesses to exclude even bona fide service animals if they are not housebroken, or if they are out-of-control. Third, the officer told Plaintiff that she could return and enter the park without the animal. The regulations require that after properly excluding an animal, a business must provide the individual with a disability with an opportunity to obtain its goods or service without the animal’s presence.

As the Lerma case illustrates, using the questions allowed under the ADA can be an effective tool for public accommodations to ferret out service animal imposters and ensure individuals with legitimate working service animals are afforded equal access under the ADA.

Related topic hubs

Compare jurisdictions: Arbitration

“The Lexology newsfeed is very relevant to my practice and I like that you can tailor the newsfeed to include specific practice areas. I enjoy seeing a variety of approaches and I will read multiple articles on the same topic for the purpose of getting the fullest understanding of a new law, a court case or other legal development.”